Patrick Musikoyo Ojwang v Security Group Kenya Limited (Cause 1779 of 2011) [2014] KEELRC 1259 (KLR)
The bottom line
#A Kenyan court awarded a security guard 12 months' salary because his employer fired him without giving him a fair hearing, even though the reasons for firing were valid.
What this practically means
#Executive summary
#Key legal issues
#Validity of reasons for dismissal
The Respondent had valid reasons to take disciplinary action against the Claimant
The court found that the Claimant drove the response vehicle without authority and a crew member was injured, as disclosed by the evidence of both the Claimant and RW1. The apology letter was treated as an admission. Thus the substantive reason for dismissal under Section 43 was satisfied.
Procedural fairness under Section 41
There was no evidence that Section 41 was complied with, rendering the dismissal unfair
There was no letter or evidence that the Claimant was informed of the reasons for intended termination, that the charges were explained to him, that he was informed of his right to have a fellow employee or union official present, or whether any hearing took place at all. Disciplinary proceedings were not recorded. Section 41 non-compliance makes the dismissal unfair under Section 45.
Remedies for unfair dismissal
Claimant awarded notice pay, service gratuity and 12 months' salary compensation
Having found unfair dismissal, the court applied Section 49(1)(a) for notice pay based on the last gross salary of Shs. 11,173.36; Rule 17(1) of the Regulation of Wages (Protective Security) Order for gratuity over 13 years of service; and Section 49(4) factors, including 13 years of long service and the manner of dismissal, justified 12 months' compensation.
Legal principles established
#- For a dismissal to be valid, the employer must comply with Section 41 of the Employment Act on procedure and Section 43 on validity of reasons
- Failure to comply with fair procedure under Section 41 renders summary dismissal unfair under Section 45
- An unfairly dismissed employee is entitled to pay in lieu of notice under Section 49(1)(a) and an employee covered by the Regulation of Wages (Protective Security) Order is entitled to gratuity at 18 days' salary per completed year of service
Court orders
#- 1.Declaration that the summary dismissal of the Claimant was unfair
- 2.Respondent to pay the Claimant Shs. 11,173.36 as pay in lieu of notice
- 3.Respondent to pay the Claimant Shs. 87,152.20 as service gratuity
- 4.Respondent to pay the Claimant Shs. 134,080.32 as compensation equivalent to 12 months' salary
- 5.Respondent to pay the Claimant's costs of the suit
- 6.Respondent to pay interest on the decretal sum and costs from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair summary dismissal and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Musikoyo Ojwang v Security Group Kenya Limited (Cause 1779 of 2011) [2014] KEELRC 1259 (KLR)", Case Analysis (2014). Employment Cause (Memorandum of Claim dated 14th October 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1259/eng@2014-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.